No.

06-97

In the Supreme Court of the United States

STOLT-NIELSEN, S.A., ET AL., PETITIONERS

v.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
THOMAS O. BARNETT
Assistant Attorney General
JOHN P. FONTE
JOHN J. POWERS III
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
 QUESTION PRESENTED

Whether the court of appeals correctly held that

petitioners must seek enforcement of their conditional
leniency agreement with the government in post-
indictment rather than pre-indictment proceedings.

(I)
 TABLE OF CONTENTS
Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TABLE OF AUTHORITIES
Cases:

Cobbledick v. United States, 309 U.S. 323 (1940) . . . . . 5, 14

Deaver v. Seymour, 822 F.2d 66 (D.C. Cir. 1987) . . . . . 8, 14
Douglas v. City of Jeannette, 319 U.S. 157 (1943) . . . . . . 13
Heike v. United States, 217 U.S. 423 (1910) . . . . . . . . 10, 14
Hynes v. Grimes Packing Co., 337 U.S. 86 (1949) . . . 12, 13
Spencer v. Kemna, 523 U.S. 1 (1998) . . . . . . . . . . . . . . . . 6, 7
Truax v. Raich, 239 U.S. 33 (1915) . . . . . . . . . . . . . . . . 12, 13
United States v. Attaya, 864 F.2d 1324 (7th Cir. 1988) . . . 9
United States v. Bailey, 34 F.3d 683 (8th Cir. 1994) . . . . . 11
United States v. Benchimol, 471 U.S. 453 (1985) . . . . . . . 12
United States v. Bird, 709 F.2d 388 (5th Cir. 1983) . . . . . 11
United States v. Cox, 342 F.2d 167 (5th Cir.),
cert. denied, 381 U.S. 935 (1965) . . . . . . . . . . . . . . . . . . 12
United States v. Gerant, 995 F.2d 505 (4th Cir. 1993) . . . 11
United States v. Meyer, 157 F.3d 1067 (7th Cir. 1998),
cert. denied, 526 U.S. 1070 (1999) . . . . . . . . . . . . . . . . 8, 9
United States v. Minnesota Mining & Mfg. Co., 551
F.2d 1106 (8th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . 10

(III)
 IV

Cases—Continued: Page

United States v. Nixon, 418 U.S. 683 (1974) . . . . . . . . . . . 12

United States v. Verrusio, 803 F.2d 885 (7th Cir.
1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statute:

15 U.S.C. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
In the Supreme Court of the United States
No. 06-97
STOLT-NIELSEN, S.A., ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW
The opinions of the court of appeals (Pet. App. 1a-
21a, 22a-25a) are reported at 442 F.3d 177. The memo-
randum order of the district court (Pet. App. 34a-64a) is
reported at 352 F. Supp. 2d 553.
JURISDICTION
The judgment of the court of appeals was entered on
March 23, 2006. A petition for rehearing was denied on
June 20, 2006 (Pet. App. 30a-31a). The petition for a
writ of certiorari was filed on July 20, 2006. The juris-
diction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Petitioners filed separate civil actions requesting,
inter alia, an injunction barring the government from
obtaining an indictment against petitioners for engaging

(1)
 2

in collusive activity in the parcel tanker shipping ser-

vices market. The district court enjoined the govern-
ment from obtaining an indictment against petitioners
for the collusive activity. Pet. App. 34a-64a. The court
of appeals reversed and remanded. Id. at 1a-21a, 22a-
25a.
1. In November 2002, the Antitrust Division of the
Department of Justice (the Division) began investigating
possible collusion in the parcel tanker shipping industry,
which provides worldwide transportation of bulk liquid
chemicals and other speciality liquids. Pet. App. 5a, 53a-
56a. Petitioner Stolt-Nielsen, S.A., through its subsid-
iary, petitioner Stolt-Nielsen Transportation Group Ltd.
(collectively SNTG), is one of the leading suppliers of
parcel tanker shipping services. Id. at 4a. When the
Division began its investigation, petitioner Richard B.
Wingfield was Managing Director of Tanker Trading for
SNTG. Id. at 4a, 8a. The Division’s investigation was
prompted by an article published in the Wall Street
Journal reporting that SNTG was being sued by Paul
O’Brien, its former general counsel. According to the
article, O’Brien had alleged in his complaint that SNTG
had been engaged in illegal collusive activity. Id. at 4a.
On November 22, 2002, SNTG contacted the Division
about applying for leniency pursuant to the Division’s
Corporate Leniency Policy. Pet. App. 5a, 55a, 72a-75a.
Under that policy, the Division agrees not to prosecute
companies that report their illegal antitrust activity to
the Division at an early stage, if certain qualifying condi-
tions are satisfied. Id. at 5a; see id. at 72a-75a. On Jan-
uary 15, 2003, the Division and SNTG executed a condi-
tional leniency agreement (the Agreement). Id. at 65a-
71a.
 3

The Agreement specified that it was “conditional and

depend[ed] upon SNTG satisfying the conditions set
forth” therein. Pet. App. 65a. SNTG represented in the
Agreement that it had taken “prompt and effective ac-
tion to terminate its part in the anticompetitive activity
being reported upon discovery of the activity.” Id. at
66a. SNTG’s representations were expressly made
“[s]ubject to verification” by the Division. Id. at 67a.
SNTG also pledged, inter alia, to provide “a full exposi-
tion of all facts known to SNTG relating to the anticom-
petitive activity being reported.” Id. at 66a.
The Division, in return, “agree[d] conditionally to
accept SNTG into * * * the Corporate Leniency Pro-
gram,” pursuant to which the Division “agree[d] not to
bring any criminal prosecution against SNTG for any act
or offense committed prior to the date of [the Agree-
ment] in connection with the anticompetitive activity
being reported.” Pet. App. 67a-68a. The Agreement
expressly provided that, “[i]f the Antitrust Division at
any time determines that SNTG has violated th[e]
Agreement, th[e] Agreement shall be void,” and the Di-
vision could then revoke SNTG’s “conditional accep-
tance” into the Leniency Program and “thereafter initi-
ate a criminal prosecution against SNTG, without limi-
tation.” Id. at 68a (emphasis added).
In the weeks that followed the execution of the
Agreement, the Division received evidence that SNTG
had made false representations in the Agreement and
had breached its duty to cooperate. The evidence indi-
cated that, contrary to SNTG’s representation that it
had taken “prompt and effective action to terminate its
part in the anticompetitive activity being reported upon
discovery of the activity,” Pet. App. 66a, SNTG in fact
had continued to engage in collusive activity for several
 4

months after SNTG’s former general counsel had in-

formed the company about SNTG’s unlawful collusive
trading practices. Id. at 8a, 157a-158a. On April 8, 2003,
in light of that information, the Division suspended
SNTG’s obligations under the Agreement and notified
SNTG that the Division was considering withdrawing
the grant of conditional leniency. Id. at 157a-159a. On
March 2, 2004, the Division withdrew its grant of condi-
tional leniency. Id. at 8a.
2. In February 2004, SNTG and Wingfield filed ac-
tions in the United States District Court for the Eastern
District of Pennsylvania, alleging that the Agreement
prohibited the Division from obtaining an indictment
against them. The complaints sought preliminary and
permanent injunctive relief enjoining the Division from
obtaining an indictment. Pet. App. 9a, 42a-43a.
On January 14, 2005, the district court permanently
enjoined the government “from indicting or prosecuting
[SNTG and Wingfield] for any violations of the Sherman
Act, 15 U.S.C. § 1, up to and including January 15, 2003,
in the parcel tanker industry.” Pet. App. 51a; see id. at
34a-50a. The court rejected the government’s argument
that SNTG was not entitled to a pre-indictment judicial
determination of its rights under the Agreement, and
that SNTG instead should assert the Agreement as a
defense in post-indictment proceedings. In the court’s
view, “if an indictment were later determined to have
been wrongfully secured, it would be too late to prevent
the irreparable consequence[]” of damage to SNTG’s
reputation. Id. at 45a & n.8. The court then concluded
that the government should be enjoined from obtaining
an indictment. Id. at 47a-50a.
3. The court of appeals reversed. Pet. App. 1a-21a,
22a-25a. The court concluded that “[s]eparation-of-
 5

power concerns * * * counsel against using the ex-

traordinary remedy of enjoining the Government from
filing the indictments.” Id. at 20a. Although there is a
“narrow exception to this rule” when “the very act of
filing an indictment” “may chill constitutional rights,”
the court explained, “this case does not implicate that
concern.” Id. at 20a, 23a. The court therefore was
“guided by other cases” in which non-prosecution agree-
ments have been construed “not [to] form the basis for
enjoining indictments before they issue.” Id. at 20a.
Rather, the court reasoned, “immunity agreements that
have promised not to charge or otherwise criminally
prosecute a defendant, like the agreement at issue in
this case, have * * * been construed to protect the
defendant against conviction rather than indictment and
trial.” Id. at 14a.
That distinction, the court explained, “is grounded in
the understanding that simply being indicted and forced
to stand trial is not generally an injury for constitutional
purposes but is rather ‘one of the painful obligations of
citizenship.’ ” Pet. App. 15a (quoting Cobbledick v.
United States, 309 U.S. 323, 325 (1940)). Observing that
an injunction normally is available only when there is no
adequate legal remedy, the court explained that peti-
tioners could “interpose the Agreement (as a defense to
conviction) in a pre-trial motion,” which is a “practical
and efficient—and indeed complete—legal remedy.” Id.
at 19a-20a. The court therefore held that the district
court “lacked authority to employ the extraordinary
remedy of enjoining the Government’s indictments of
[SNTG] and Wingfield.” Id. at 21a.
4. On July 20, 2006, petitioners filed with Justice
Souter an application to recall and stay the mandate of
the court of appeals pending this Court’s disposition of
 6

the petition for a writ of certiorari. On July 25, 2006,

Justice Souter denied the application. The same day,
petitioners re-filed the application with Justice Stevens,
who, on August 2, 2006, referred the application to the
full Court. On August 21, 2006, the Court denied peti-
tioners’ application. On September 6, 2006, a federal
grand jury in the Eastern District of Pennsylvania re-
turned an indictment charging petitioners with engaging
in a combination and conspiracy to suppress competition
in the parcel tanker shipping industry, in violation of 15
U.S.C. 1.
ARGUMENT
Petitioners contend (Pet. 10-11) that the Third Cir-
cuit’s decision that federal courts generally cannot en-
join a federal indictment to enforce a non-prosecution
agreement conflicts with the law in the Seventh Circuit.
That contention lacks merit and does not warrant re-
view.
1. The petition should be denied for the threshold
reason that the claim it makes is now moot. See, e.g.,
Spencer v. Kemna, 523 U.S. 1 (1998). Petitioners filed
an action asserting that the Agreement prohibited the
government from obtaining an indictment against them,
and they accordingly sought an injunction barring the
government from obtaining an indictment. The district
court granted a permanent injunction. Pet. App. 51a.
The court of appeals reversed, holding that petitioners
have no entitlement under the Agreement to an injunc-
tion barring the government from obtaining an indict-
ment against them, and that petitioners instead should
assert the Agreement as a defense in post-indictment,
pre-trial, proceedings. Id. at 19a.
 7

The petition seeks this Court’s review of whether

“courts have the authority to determine the enforce-
ability of non-prosecution agreements prior to indict-
ment.” Pet. 20. The petition makes clear throughout
that the issue petitioners seek to raise is whether they
are entitled to pre-indictment relief in the form of an
injunction barring the government from obtaining an
indictment against them. See Pet. 12-29. Petitioners
contend that they have “a bargained-for interest in
avoiding not only conviction, but indictment.” Pet. 19.
After this Court denied petitioners’ application for a
stay and recall of the court of appeals’ mandate, a fed-
eral grand jury returned an indictment against petition-
ers. Because the petition seeks this Court’s review of
whether petitioners were entitled to an injunction bar-
ring the government from obtaining an indictment
against them, and because petitioners have now been
indicted, the issue raised by the petition is moot. Addi-
tionally, there could be no basis for concluding that the
issue raised by the petition is “capable of repetition, yet
evading review.” See, e.g., Kemna, 523 U.S. at 17. That
exception applies only if, inter alia, there is a “reason-
able expectation that the same complaining party [will]
be subject to the same action again.” Ibid. (citation
omitted) (alteration in original). There is no reasonable
expectation that petitioners will again be indicted for the
anticompetitive conduct encompassed by the indictment,
or that the issue of petitioners’ entitlement under the
Agreement to an injunction barring their indictment will
again be presented.
Even assuming, arguendo, that petitioners’ indict-
ment fails to render the petition moot, the fact of the
indictment weighs strongly against granting certiorari.
In light of petitioners’ indictment, there is no longer any
 8

practical significance to the issue whether petitioners

are entitled to an injunction barring the government
from obtaining an indictment against them. Petitioners,
as the court of appeals explained, can now assert the
Agreement as a defense in post-indictment, pre-trial
proceedings.
2. Even apart from mootness considerations, certio-
rari should be denied. The court of appeals correctly
determined that courts should not grant the extraordi-
nary remedy of an injunction against a grand jury in-
dictment based on petitioner’s claim under a non-prose-
cution agreement.
a. The court of appeals’ decision is fully consistent
with prior decisions of this Court and other courts of
appeals. Petitioners fail to cite any case in which a court
has enjoined the federal government from obtaining an
indictment against the target of an ongoing federal
criminal investigation. See Deaver v. Seymour, 822 F.2d
66, 69-70 (D.C. Cir. 1987) (finding “no case” in which “a
federal court [has] enjoined a federal prosecutor’s inves-
tigation or presentment of an indictment,” and observ-
ing that “subjects of federal investigation have never
gained injunctive relief against federal prosecutors”); cf.
id. at 68 (noting that this Court “in certain cases” has
“permitted federal courts to issue injunctions against
state court criminal proceedings that threatened federal
constitutional rights”).
Contrary to petitioners’ argument (Pet. 12-16), the
court of appeals’ decision does not conflict with the Sev-
enth Circuit’s decision in United States v. Meyer, 157
F.3d 1067 (1998), cert. denied, 526 U.S. 1070 (1999). In
that case, the defendant argued that his due process
rights had been violated when the government re-in-
dicted him without seeking a pre-indictment determina-
 9

tion that he had breached an immunity agreement. The

agreement “provided that, in exchange for [the defen-
dant’s] performance, the government would dismiss the
charge currently pending against him and would not
charge him with any other violations relating to the
same criminal conspiracy or with other drug or money
laundering violations.” Id. at 1077.
The Seventh Circuit rejected the defendant’s argu-
ment that he was entitled to a pre-indictment determi-
nation of breach instead of the post-indictment determi-
nation he had received. The court explained that “the
benefit of [the defendant’s] bargain” was “to avoid the
risk of conviction”—not the risk of indictment—and that
the post-indictment (but pre-trial) determination there-
fore had given him “all of the protection demanded by
due process.” Meyer, 157 F.3d at 1077. Although the
court indicated in dictum that the “preferred proce-
dure” would be for the government to seek a pre-indict-
ment determination of whether a defendant has
breached an immunity agreement, ibid., the court made
no suggestion of a requirement to seek a pre-indictment
determination, much less that it could be appropriate to
enjoin the government from obtaining an indictment. To
the contrary, the court rejected the defendant’s argu-
ment that he was entitled to a pre-indictment determi-
nation.1
As the court of appeals explained, Pet. App. 13a-14a,
24a, its decision is fully consistent with the Seventh Cir-
cuit’s decision in Meyer. As in Meyer, the court of ap-
peals here rejected petitioners’ contention that they are
1
Accord United States v. Attaya, 864 F.2d 1324, 1330 n.9 (7th Cir.
1988) (observing that a pre-indictment hearing may be preferable
absent “good cause for immediate reindictment,” but acknowledging
that “a pre-indictment hearing is not a constitutional requirement”).
 10

entitled to a pre-indictment determination of whether

they breached the Agreement. The court instead held,
consistent with Meyer, that the Agreement protects pe-
titioners against conviction rather than against indict-
ment, and that petitioners accordingly can assert the
Agreement as a defense in post-indictment proceedings.
Id. at 14a-15a, 19a-20a.
b. As the court of appeals explained, Pet. App. 14a-
15a, 20a, no court has held that a party to an agreement
like the one in this case holds any entitlement to an in-
junction barring indictment. Indeed, petitioners have
cited no case in which a federal court has held that any
immunity, leniency, or non-prosecution agreement, re-
gardless of its particular wording, granted a right to
have a court enjoin the government from obtaining an
indictment or furnished a basis for a court to do so.2
This Court, nearly one century ago, construed an
immunity statute providing that “[n]o person shall be
prosecuted [for any conduct] * * * concerning which
he may testify.” Heike v. United States, 217 U.S. 423,
431 (1910). The Court concluded that the provision con-
ferred immunity only “as a defense” to “successful pros-
ecution,” not an absolute immunity from standing trial.
Ibid. The Agreement in this case similarly set forth that
“the Antitrust Division agrees not to bring any criminal
2
Petitioners incorrectly suggest (Pet. 28-29) that United States v.
Minnesota Mining & Manufacturing Co., 551 F.2d 1106, 1111-1112
(8th Cir. 1977), held that the non-prosecution agreement at issue in that
case granted a right not to be indicted. But that case involved a post-
indictment challenge, not a pre-indictment challenge. The Eighth Cir-
cuit merely held that, because “the defendants fully discharged their
obligations under the agreement, the Government [was] bound to fulfill
its responsibility” not to prosecute. Id. at 1111 (footnote omitted). The
court of appeals’ decision in this case permits petitioners to seek a simi-
lar resolution in post-indictment proceedings. See Pet. App. 21a n.7.
 11

prosecution against SNTG.” Pet. App. 68a. Such agree-

ments have uniformly been construed to provide a de-
fense to successful prosecution rather than an absolute
immunity from indictment. Id. at 14a; see, e.g., United
States v. Bailey, 34 F.3d 683, 690-691 (8th Cir. 1994);
United States v. Gerant, 995 F.2d 505, 509 (4th Cir.
1993); Meyer, 157 F.3d at 1071, 1077; United States v.
Bird, 709 F.2d 388, 392 (5th Cir. 1983).
Petitioners identify nothing in the Agreement at is-
sue in this case that could justify departing from the
general rule. To the contrary, the Agreement makes
explicit that, “[i]f the Antitrust Division at any time de-
termines that SNTG has violated this Agreement,” the
“Agreement shall be void” and the “Division may revoke
the conditional acceptance of SNTG into the Corporate
Leniency Program,” in which event the “Division may
* * * initiate a criminal prosecution against SNTG,
without limitation.” Pet. App. 68a (emphasis added).
That language expressly reinforces that, if the Division
determines that SNTG has violated the Agreement, the
Agreement affords no protection against initiating a
prosecution by means of indictment. Petitioners’ con-
tention that they have a right under the Agreement to
insist upon pre-indictment judicial review is particularly
without merit because the Agreement expressly pre-
serves the Division’s right to proceed in the first in-
stance based on its own determination of a violation,
with no suggestion of any requirement for a prior judi-
cial determination. See United States v. Verrusio, 803
F.2d 885, 889-890 n.3 (7th Cir. 1986) (if a non-prosecu-
tion agreement “does not require the government to
follow a particular procedure in the event that it believes
[the defendant] breached his obligations,” the court “will
not ‘imply as a matter of law a term which the parties
 12

themselves did not agree upon’ ”) (quoting United States

v. Benchimol, 471 U.S. 453, 456 (1985) (per curiam)).
Because an agreement like the one at issue here af-
fords no entitlement to avoid an indictment, the proper
means of enforcing such an agreement is by invoking it
pre-trial as a defense to conviction and moving to have
the indictment dismissed and the prosecution termi-
nated, not by seeking to enjoin the government from
obtaining an indictment in the first place. See Pet. App.
19a-20a. That conclusion is fortified by the recognition
that “[s]eparation-of-power[s] concerns * * * counsel
against using the extraordinary remedy of enjoining the
Government from filing * * * indictments,” especially,
as here, in the absence of any claim that “the very act of
filing an indictment” “may chill constitutional rights.”
Id. at 20a, 24a; see United States v. Nixon, 418 U.S. 683,
693 (1974) (observing that “the Executive Branch has
exclusive authority and absolute discretion to decide
whether to prosecute a case”); United States v. Cox, 342
F.2d 167, 171 (5th Cir.) (en banc) (“It follows, as an inci-
dent of the constitutional separation of powers, that the
courts are not to interfere with the free exercise of the
discretionary powers of the attorneys of the United
States in their control over criminal prosecutions.”),
cert. denied, 381 U.S. 935 (1965).
c. Petitioners err in relying (Pet. 23-25) on this
Court’s decisions in Hynes v. Grimes Packing Co., 337
U.S. 86 (1949), and Truax v. Raich, 239 U.S. 33 (1915).
Those decisions, contrary to petitioner’s characteriza-
tion, do not hold that courts generally may enjoin the
government from obtaining an indictment whenever an
indictment might adversely affect the property interests
of the potential defendant. See Pet. 24. The decisions
involved the particular context of a facial, pre-enforce-
 13

ment challenge to the validity of a federal regulation

(Hynes) and a state law (Truax). Although the Court
observed that an injunction against enforcement of the
laws was warranted when essential to protecting prop-
erty rights, see Hynes, 337 U.S. at 98-99; Truax, 239
U.S. at 38-39, the Court did not purport generally to
sanction the entry of an injunction barring a prosecutor
from obtaining an indictment against the target of an
ongoing investigation.
Rather, those cases involved circumstances in which
the Court determined that, because the subjects of
the challenged laws would be chilled from risking viola-
tion of the laws, there was no practical opportunity to
raise a post-enforcement challenge “in an ordinary crim-
inal proceeding.” Hynes, 337 U.S. at 99; see Truax, 239
U.S. at 37-39. The Court therefore approved a pre-en-
forcement action for an injunction against enforcement
of the allegedly invalid laws at issue on the basis that
affected individuals would have no adequate legal rem-
edy. Hynes, 337 U.S. at 99; Truax, 239 U.S. at 39; see
Pet. App. 23a. Here, by contrast, as in any case raising
the question of the enforceability of a non-prosecution or
immunity agreement, petitioners “have a practical and
efficient—and indeed complete—legal remedy available
to them, i.e., access to a federal forum post-indictment
in which they may assert the Agreement as a defense.”
Id. at 20a. In such circumstances, nothing in Hynes or
Truax supports enjoining the government from obtain-
ing an indictment. See, e.g., Douglas v. City of Jean-
nette, 319 U.S. 157, 163 (1943) (noting “familiar rule that
courts of equity do not ordinarily restrain criminal pros-
ecutions” because lawfulness of prosecution “may be
determined as readily in the criminal case” itself “as in
a suit for an injunction”).
 14

d. Finally, the court of appeals’ conclusion that peti-

tioners must enforce the Agreement in post-indictment
rather than pre-indictment proceedings is consistent
with this Court’s recognition of the “possibility that any
citizen, no matter how innocent, may be subjected to a
* * * criminal prosecution and put to the expense of
defending himself.” Heike, 217 U.S. at 432. As the
Court has explained, “[b]earing the discomfiture and
cost of a prosecution for crime even by an innocent per-
son is one of the painful obligations of citizenship.” Cob-
bledick v. United States, 309 U.S. 323, 325 (1940); see
Deaver, 822 F.2d at 69 (“Although it is surely true that
an innocent person may suffer great harm to his reputa-
tion and property by being erroneously accused of a
crime, all citizens must submit to a criminal prosecution
brought in good faith so that larger societal interests
may be preserved.”). The Agreement, by specifying that
the “Division may * * * initiate a criminal prosecution
against SNTG, without limitation” upon “determin[ing]
that SNTG has violated [the] Agreement,” Pet. App. 68a,
makes clear that petitioners possessed no special enti-
tlement to avoid criminal prosecution.
 15

CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
THOMAS O. BARNETT
Assistant Attorney General
JOHN P. FONTE
JOHN J. POWERS III
Attorneys

SEPTEMBER 2006